Stewart v. Milliken

593 S.E.2d 344, 277 Ga. 659, 2004 Fulton County D. Rep. 767, 2004 Ga. LEXIS 182

• Court: Supreme Court of Georgia
• Decided: March 1, 2004
• Docket: S04A0083
• Status: Published

Opinions

Hunstein, Justice.

In September 2001, the habeas corpus court found that Leonard Scott Milliken received ineffective assistance of appellate counsel at his trial and ordered that Milliken be given a new appeal. The State did not file an appeal from this ruling, see OCGA § 9-14-52 (c), nor did it file a cross appeal after we granted Milliken a certificate of probable cause to appeal in order to consider the propriety of the relief ordered by the habeas corpus court. See Birt v. Hopper, 245 Ga. 221 (265 SE2d 276) (1980). In Milliken v. Stewart, 276 Ga. 712 (583 SE2d 30) (2003), we reversed the habeas corpus court on the basis that the court erred by granting Milliken a second appeal when it should have granted Milliken a new trial. We remanded the case to the habeas corpus court to implement the correct remedy. Compare Hughes v. Sikes, 273 Ga. 804 (3) (546 SE2d 518) (2001) (remanding entire order). On remand in July 2003 the habeas corpus court ordered that Milliken be given a new trial. The State now appeals, contending in its enumerations that the habeas corpus court erred in various ways when it found Milliken received ineffective assistance of appellate counsel. However, the merits of the effectiveness of Milliken’s appellate counsel were reached and resolved in the habeas corpus court’s final order of September 2001. The State’s attempt to challenge those merits now is untimely. OCGA § 5-6-38 (a). Contrary to the State’s argument, granting a new trial to an appellant does not upon remand of the case entitle the appellee to a new appeal in order to challenge issues that were conclusively resolved adversely to the appellee in the lower court’s original order.¹

Regarding the only ruling properly before us, the State does not enumerate any error as to the habeas corpus court’s July 2003 order. Our review of that order revealing nothing to indicate error, see generally In the Interest of H. A. M., 201 Ga. App. 49, 50 (410 SE2d 319) (1991), we affirm the habeas corpus court.

Judgment affirmed.

All the Justices concur, except Benham, Carley and Hines, JJ, who dissent.

1 The State argues that it did not directly appeal from the habeas corpus court’s ruling because it had no objection with the remedy originally granted by that court, i.e., a new appeal, and that it was only when Milliken’s conviction was vacated and a new trial ordered by the court that it needed to assert its objections to the habeas corpus court’s ruling on ineffective assistance of appellate counsel. The State’s acquiescence in the original remedy fashioned by the habeas corpus court, however, does not excuse it from failing to file a timely appeal on the merits of issues the State would now contest. Furthermore, we note that the State knew that this Court was concerned with the remedy fashioned by the habeas corpus court when we granted Milliken’s appeal; that Milliken was asserting on appeal that he should have received a new trial; and that vacation of Milliken’s conviction would necessarily follow if (as indeed it did) this Court agreed with Milliken. The State’s argument thus falters in light of its inexplicable failure to file a cross appeal challenging the merits of the habeas corpus court’s ruling after Milliken’s appeal was granted. See Birts, supra (declining to reach merits of State’s arguments to merits of habeas corpus relief on basis that State did not file either a timely direct appeal or a timely cross appeal).